The Notion of a Clean Break: A Comparative Analysis of Post-Dissolution Financial Ties in Ireland and Sweden

• Author: Annie Nevala
• Position: BCL (International) III, University College Cork
• Pages: 59-70

[2014] COLR

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THE NOTION OF A CLEAN BREAK:

A COMPARATIVE ANALYSIS OF POST-DISSOLUTION FINANCIAL TIES IN

IRELAND AND SWEDEN

Annie Nevala*

A INTRODUCTION

Distribution of marital assets and ancillary relief is recognised in all western jurisdictions as a

natural element following marital breakdown. The extent to which jurisdictions give rise to

such rights however vary considerably all over the globe and individual jurisdictions are often

placed at various parts of the regulatory spectrum. Sweden has taken a strict rule-based

approach to the concept of ancillary relief, placing itself on the opposite end of the regulatory

spectrum to Ireland, which has settled for an approach governed by broad judicial freedom.

This paper will assess the positions of these two jurisdictions with regards to ancillary relief

post-divorce and discuss the impact of these two systems on the notion of a clean break.

B IRISH POSITION

The divorce regime in Ireland is grounded upon Article 41.3.2° of the Irish Constitution,

which in turn is supported by the lengthy and broadly drafted provisions of the Family Law

(Divorce) Act 1996.1 The Divorce Act gives the Irish judiciary extensive scope in determining

what orders to make when an application for a decree of divorce and ancillary relief comes

before the courts. By according such broad discretion to the judiciary and by avoiding the use

of strict guidelines, it was believed that this discretion would serve to facilitate the varying

circumstances that may arise in each individual case.2

1 History

Divorce in Ireland was prohibited under Article 41.3.2° of the Irish Constitution up until

1996. In 1996, Ireland finally legislated for divorce and repealed the constitutional

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*BCL (International) III, University College Cork.

1 FamilyLaw (Divorce) Act 1996 (the Divorce Act).

2 L Crowley, ‘Equal versus Equitable Division of Marital Assets – What can be learned from the experiences of

other jurisdictions? Part I’ (2007) 1 Irish Journal of Family Law 19.